Sharris v. Commonwealth , 480 Mass. 586 ( 2018 )

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SJC-12165
STANLEY V. SHARRIS, JR. vs. COMMONWEALTH.
Suffolk. December 7, 2017. - September 17, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Due Process of Law, Competency to stand trial. Incompetent
Person, Criminal charges. Practice, Criminal, Indictment,
Dismissal, Competency to stand trial, Defendant's
competency. Homicide.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 17, 2016.
The case was considered by Hines, J.
Paul R. Rudof, Committee for Public Counsel Services, for
the defendant.
Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the
Commonwealth.
Crystal L. Lyons, Assistant District Attorney, for the
District Attorney for the Northern District, was present but did
not argue.
Kevin S. Prussia, Matthew C. Tymann, & Annaleigh E. Curtis,
for Massachusetts Association of Criminal Defense Lawyers,
amicus curiae, submitted a brief.
GAZIANO, J. General Laws c. 123, § 16 (f), provides for
the dismissal of criminal charges when an individual is found
2
incompetent to stand trial. The statute requires mandatory
dismissal of charges at the time when the individual would have
been eligible for parole if he or she had been convicted and had
been sentenced to the maximum statutory sentence. See id. The
statute also provides courts with the discretion to dismiss
criminal charges "prior to the expiration of such period." Id.
The defendant,1 who is now seventy-four years old, was
charged with murder in the first degree and interfering with a
fire fighter in 1994, when he was fifty-one years old. At that
time, he was deemed incompetent to stand trial. Since then, he
continually has been deemed incompetent, and at this point, the
Commonwealth has conceded that he is permanently incompetent.
The nature of the defendant's mental impairment, a form of
alcohol-induced dementia, is such that it is permanent,
degenerative, and not amenable to any form of treatment.
Additionally, his physical condition is deteriorating, and he is
now physically frail, nourished through a feeding tube, and
bedridden. It is likely that his physical condition also will
continue to worsen. Due to the level of medical care he
requires, in August, 2015, the defendant was released on bail,
with conditions, so he could be placed in a hospital setting.
He is civilly committed to the Department of Mental Health
1 Although the petitioner commenced this action by filing a
petition in the county court, for convenience, we refer to him
as "the defendant."
3
(DMH), and is being cared for in an unlocked wing of a public
hospital operated by the Department of Public Health (DPH).
Although G. L. c. 123, § 16 (f), does not explicitly
exclude murder in the first degree from its provisions for
dismissal, it does so effectively, because the statute is based
on the date of parole eligibility, and there is no parole
eligibility date for the offense of murder in the first degree.
The defendant contends that the charges against him nonetheless
should be dismissed, either under the provision allowing
discretionary release or on constitutional grounds. Beginning
in 2001, through May, 2016, the defendant has filed motions to
dismiss, and motions for reconsideration, arguing that G. L.
c. 123, § 16 (f), violates his right to substantive due process
because it restricts his fundamental right to liberty and is not
narrowly tailored to achieve compelling State interests. See
Commonwealth v. Calvaire, 476 Mass. 242, 246 (2017). All of
these motions have been denied. In May, 2016, the defendant
sought relief pursuant to G. L. c. 211, § 3, from the denial of
his most recent motion for reconsideration. He thereafter
appealed to this court from the denial of his petition.
For the reasons that follow, we conclude that maintaining
pending charges against an incompetent defendant in those rare
circumstances, such as here, where a defendant will never regain
competency, and where maintaining the charges does not serve the
4
compelling State interest of protecting the public, is a
violation of the defendant's substantive due process rights.2
1. Background. The essential facts are uncontested. On
December 25, 1994, the defendant was arrested for the beating
death of his father; he also was charged with attempting to
obstruct fire fighters who were responding to smoke coming from
the house where the defendant and his father lived. In January,
1995, a grand jury indicted the defendant on one charge of
murder in the first degree and one charge of interfering with a
fire fighter.
Prior to his arraignment, the defendant was examined for
competency to stand trial, pursuant to G. L. c. 123, § 15 (a).
In December, 1994, he was found to be incompetent to stand trial
and committed to Bridgewater State Hospital (Bridgewater) for a
period of six months. See G. L. c. 123, § 16 (b). Since then,
he repeatedly has been reexamined and recommitted, for most of
that period pursuant to G. L. c. 123, § 16 (c), and remains
incompetent.
Following a competency examination of the defendant in
February, 2013, the director of forensic services at Bridgewater
filed a report concluding that the defendant was then
incompetent to stand trial, and in his opinion would never be
2 We acknowledge the amicus briefs submitted by the
Massachusetts Association of Criminal Defense Lawyers and the
district attorney for the Northern District.
5
competent; the director has reaffirmed that conclusion in
subsequent reports. In April, 2014, Bridgewater filed a
petition for authorization for medical treatment of the
defendant. That motion was allowed. In May, 2014, Bridgewater
filed a motion that the defendant be treated by DMH. The
Commonwealth's motion for an independent medical examination was
allowed, and the defendant's medical records were produced to
the Commonwealth. Thereafter, in June, 2014, an evidentiary
hearing, at which testimony was taken, was conducted on
Bridgewater's motion that the defendant be treated at a DMH
facility. The hearing was continued, and the motion was denied
on July 31, 2014. On the same day, the Commonwealth's petition
for a renewal of the defendant's commitment, under G. L. c. 123,
§ 8, and request that all subsequent hearings be conducted in
accordance with G. L. c. 123, §§ 7, 8, was allowed, and the
defendant was civilly committed to Bridgewater for one year.
In July, 2015, the Commonwealth filed a motion to extend
the defendant's prior commitment, originally ordered under G. L.
c. 123, § 16 (b), and seeking that all subsequent hearings
proceed under G. L. c. 123, §§ 7, 8. In August, 2015, upon a
motion by Bridgewater, the defendant was transferred to the
custody of DMH and held on bail. He was transferred to a joint
DMH-DPH facility, where both DPH and DMH services are offered
and where DPH operates hospital wards. On September 15, 2015, a
6
competency hearing was held in the Brockton Division of the
District Court Department. The defendant was found incompetent
and was civilly committed to Bridgewater for one year, pursuant
to G. L. c. 123, § 8. After a judge of the District Court
visited the defendant at his bedside in the DPH hospital, the
judge allowed Bridgewater's motion that DMH hold the defendant
for one year. The Commonwealth "does not dispute . . . [the]
assessment [by the director of forensic services at
Bridgewater]" that the defendant "will never be competent to
stand trial." At a hearing before a Superior Court judge in
December, 2015, the Commonwealth conceded that the defendant
will never be competent to stand trial.
During the course of his commitment to Bridgewater, the
defendant repeatedly exhibited violent and assaultive behavior
against health care staff, other patients, and correction
officers. In addition to physical assaults, he was frequently
verbally combative and engaged in numerous outbursts of yelling.
He made sexually inappropriate comments and gestures towards
female staff. In 2005, he attempted to strangle his roommate
and thereafter was placed in a single-occupancy room.
In the last three years of the defendant's time at
Bridgewater, however, his doctors noted that the defendant
demonstrated "sustained improvement in his aggressive behavior"
and that he was no longer engaging in the sexually aggressive
7
speech and behavior he had previously exhibited. The most
recent competency evaluation in the record, from 2015, indicated
that the defendant's "infrequent aggression without injury" is
typical for a person with the defendant's level of dementia, and
that his behavior was "not at the level of seriousness of
assaults in previous years." "[H]is last serious assault of
another patient occurred in November 2011." Between 2012 and
June, 2015, the defendant committed four assaults that caused no
serious injuries or did not result in any injury.
The improvement in the defendant's behavior was partially
attributable to his worsening physical and mental condition.
According to the evaluations in the record, over the past
twenty-two years, the defendant has been examined by eight
forensic psychologists and psychiatrists. Their general
consensus is that the defendant suffers from Korsakoff syndrome,
which is a form of substance-induced persisting dementia caused
by the defendant's prior alcohol use. The defendant's medical
records indicate that he began exhibiting symptoms of mental
impairment and certain physical difficulties at least as early
as 1992, and doctors suspected that these were related to brain
damage from alcohol abuse. He also has a history in the
records, from at least 1985 onward, of a head injury. In
addition, he has an ongoing seizure disorder, and brain scans
have shown noticeable abnormalities. During his commitment to
8
Bridgewater, the defendant's cognitive and physical capacities
have significantly deteriorated, and they are not expected to
improve.
Since 2013, the defendant "has become progressively
physically weaker, and currently is bedridden and very weak
physically." According to his most recent medical records, the
defendant has a permanent feeding tube implanted in his stomach
through which he receives all of his nutrition and medications,
cannot walk on his own, and spends his time either in a hospital
bed or a geriatric chair. He is so weak that an average adult
could hold both of his hands with one hand, and he would not be
able to pull away. The Commonwealth agreed that the defendant
has been "physically frail" since at least 2015. In 2015, in
the most recent medical evaluation in the records, the director
of forensic services at Bridgewater opined that the defendant
could "be managed in a less secure setting, such as a facility
of [DMH], a medical unit at the [Lemuel] Shattuck Hospital, or a
long-term care facility."
In August, 2015, the Commonwealth did not dispute
Bridgewater's motion for the release of the defendant, on bail
and with conditions, pursuant to G. L. c. 123, § 17 (c);
Bridgewater's motion to transfer the defendant to the custody of
DMH, so that he could be treated at a DMH facility, particularly
for management of his feeding tube, was allowed. Shortly
9
thereafter, the Commonwealth assented to Bridgewater's motion to
amend the special conditions of release so that the defendant
could be moved to the medical unit of a DPH hospital ward, in a
jointly operated facility, so that he could receive more
appropriate medical care; that motion was allowed.
Since the motion to hold the defendant in the DPH hospital
ward, under DMH custody, was allowed, the defendant has been
held on that ward. He remains civilly committed to the custody
of DMH, and DMH continues to follow his care, which is provided
day-to-day by DPH staff. DMH has indicated that, if the charges
are dismissed, it could seek the defendant's placement in a
long-term care facility that could more appropriately manage his
care.
2. Prior proceedings. In May, 2001, citing due process
considerations, the defendant moved pursuant to G. L. c. 123,
§ 16 (f), to dismiss the charges. In August, 2002, a Superior
Court judge denied the motion; he determined that the defendant
had not been denied due process and that G. L. c. 123, § 16 (f),
is not applicable to charges of murder in the first degree. In
March, 2013, the defendant filed another motion to dismiss,
again pursuant to G. L. c. 123, § 16 (f). In April, 2013, a
different Superior Court judge denied that motion. The judge
concluded that the statute is not applicable to charges of
murder in the first degree and that, even if it is, he did not
10
believe it was in the interest of justice to dismiss the
charges. In July, 2015, the defendant again moved to dismiss
the indictments. That motion was denied in March, 2016, by a
third Superior Court judge. In April, 2016, the defendant filed
a motion for reconsideration of his motion to dismiss; he argued
that the denial of his motion resulted in a violation of
substantive due process. The motion was denied one week later.
The judge concluded that due process is satisfied by the
provisions of G. L. c. 123, § 16 (c), which requires annual
reviews of competency for defendants who have been found
incompetent to stand trial.
In May, 2016, the defendant filed a petition in the county
court seeking relief pursuant to G. L. c. 211, § 3, from the
denial of his motion for reconsideration. The defendant argued
that review under G. L. c. 211, § 3, was appropriate, because he
is permanently incompetent to stand trial, and would never have
an adverse final judgment from which to appeal. The single
justice concluded that the defendant had other avenues by which
to seek relief and denied the motion without a hearing. In
September, 2016, the defendant appealed to this court, pursuant
to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). In
December, 2016, we issued an order allowing the defendant's
appeal to proceed in the full court.
11
3. Discussion. The defendant argues that due process
prohibits the Commonwealth from maintaining pending criminal
charges indefinitely against a defendant who is permanently
incompetent, and, therefore, that there must be some means of
obtaining dismissal of a charge of murder in the first degree.
The defendant contends that his charges may be dismissed either
pursuant to G. L. c. 123, § 16 (f), which contains provisions
for both mandatory dismissal and dismissal in the interest of
justice, or by the inherent power of the courts to remedy
violations of due process. See Department of Mental Retardation
v. Kendrew, 418 Mass. 50, 55 (1994) ("We recognize that the
courts of the Commonwealth have certain inherent and implied
powers in addition to those powers expressly enumerated in
various statutes").
The defendant argues, first, that the court should conclude
that a sentence of life in prison without the possibility of
parole is unconstitutional when applied to permanently
incompetent defendants, and should sever that portion of the
murder statute, as applied to incompetent defendants, which
prohibits parole. Severance of the statute in such a manner
would result in eligibility for parole for permanently
incompetent defendants charged with murder in the first degree
in a similar manner to those incompetent defendants who are
12
charged with murder in the second degree.3 See Diatchenko v.
District Attorney for the Suffolk Dist., 466 Mass. 655, 672-673
(2013), S.C., 471 Mass. 12 (2015) (holding that sentence of life
in prison without possibility of parole is unconstitutional when
applied to juvenile defendants, and therefore severing that
portion of murder statute). Alternatively, the defendant argues
that G. L. c. 123, § 16 (f), which permits dismissal in the
interest of justice, could be interpreted to apply to all
crimes, regardless of parole eligibility. Lastly, the defendant
suggests that this court could create a remedy to resolve any
due process violation.
The Commonwealth contends, however, that there is no due
process violation, and that G. L. c. 123, § 16 (f), is narrowly
tailored to serve the compelling State interest of protecting
public safety. In this view, the Legislature implicitly
excluded defendants charged with murder in the first degree by
hinging the dismissal of charges on eligibility for parole.4
3 At the time of the defendant's arrest, defendants
convicted of murder in the second degree were eligible for
parole after fifteen years. After the United States Supreme
Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), the
Legislature revised the murder statute. Currently, defendants
who are convicted of murder in the second degree are eligible
for parole at a period of from fifteen to twenty-five years
after sentencing, to be determined by the sentencing judge. See
G. L. c. 127, § 133A; G. L. c. 279, § 24.
4 All other offenses which permit a life sentence also have
a statutory parole date that follows a fixed number of years;
13
Such an exclusion is justified, the Commonwealth suggests,
because murder in the first degree is different in kind from
other crimes. See G. L. c. 277, § 63 (no statute of limitations
for murder). See also Commonwealth v. Francis, 450 Mass. 132,
135 (2007), S.C., 477 Mass. 582 (2017) ("It is reasonable for
the Legislature to treat defendants facing a charge of murder in
the first degree differently from other defendants").
Although the language of G. L. c. 123, § 16 (f), read in
conjunction with G. L. c. 265, § 1, excludes defendants charged
with murder in the first degree from being eligible for
dismissal of charges under that provision, substantive due
process requires a statute affecting a fundamental right to be
narrowly tailored to achieve compelling government interests.
See Calvaire, 476 Mass. at 246. While murder in the first
degree is the gravest of charges, we conclude that substantive
due process requires dismissal of the charges where a defendant
will never regain competency and maintaining the charges does
not serve the compelling State interest of protecting the
public.
a. General Laws c. 123, § 16 (f). General Laws c. 123,
§ 16 (f), is intended to ensure that criminal defendants who are
incompetent to stand trial are not left facing the indefinite
for no offense is this period greater than that for a conviction
of murder in the second degree. See G. L. c. 127, § 133A; G. L.
c. 279, § 24.
14
pendency of criminal charges.5 See Calvaire, 476 Mass. at 244,
citing Foss v. Commonwealth, 437 Mass. 584, 589 (2002). The
statute requires dismissal of criminal charges on "the date of
the expiration of the period of time equal to the time of
imprisonment which the person would have had to serve prior to
becoming eligible for parole if he had been convicted of the
most serious crime with which he was charged in court and
sentenced to the maximum sentence he could have received."
G. L. c. 123, § 16 (f). Alternatively, a court may, in the
interest of justice, dismiss pending charges "prior to the
expiration of such period," i.e., during the period before a
convicted defendant would be eligible for parole under the
provision requiring mandatory dismissal. Id.
5 General Laws c. 123, § 16 (f), provides:
"If a person is found incompetent to stand trial, the
court shall send notice to the department of correction
which shall compute the date of the expiration of the
period of time equal to the time of imprisonment which the
person would have had to serve prior to becoming eligible
for parole if he had been convicted of the most serious
crime with which he was charged in court and sentenced to
the maximum sentence he could have received, if so
convicted. For purposes of the computation of parole
eligibility, the minimum sentence shall be regarded as one
half of the maximum sentence potential sentence. Where
applicable, the provisions of [G. L. c. 127, §§ 129, 129A,
129B, and 129C,] shall be applied to reduce such period of
time. On the final date of such period, the court shall
dismiss the criminal charges against such person, or the
court in the interest of justice may dismiss the criminal
charges against such person prior to the expiration of such
period."
15
"Our primary duty in interpreting a statute is 'to
effectuate the intent of the Legislature in enacting it.'"
Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water
Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.
740, 744 (2010). "Ordinarily, where the language of a statute
is plain and unambiguous, it is conclusive as to legislative
intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).
That said, "[w]e will not adopt a literal construction of a
statute if the consequences of such construction are absurd or
unreasonable." Attorney Gen. v. School Comm. of Essex, 387
Mass. 326, 336 (1982). See Black's Law Dictionary 11-12 (10th
ed. 2014) (defining "absurdity" as "being grossly unreasonable"
and "[a]n interpretation that would lead to an unconscionable
result, esp. one that . . . the drafters could not have
intended").
Taken in conjunction with the provisions on murder in the
first degree that exclude anyone convicted under G. L. c. 265,
§ 1, from eligibility for parole, G. L. c. 123, § 16 (f),
implicitly excludes dismissal of charges for which a defendant
who is convicted and sentenced to the maximum sentence would
never be eligible for parole. This is so because, where it is
not possible to compute the date on which a person would become
eligible for parole on a charge, the charge cannot be dismissed
16
on that date, and a court cannot, in the interest of justice,
dismiss the charge prior to that date.
Here, the most serious crime with which the defendant was
charged is murder in the first degree. If he had been convicted
of that offense, he would have been sentenced to the mandatory
sentence of life in prison without the possibility of parole.
Under the plain language of G. L. c. 265, § 1, therefore, a
defendant charged with that offense is never eligible for
dismissal of pending charges in accordance with G. L. c. 123,
§ 16 (f).
b. Substantive due process. The defendant contends that
the plain meaning of G. L. c. 123, § 16 (f), as discussed supra,
violates the due process clauses of art. 12 of the Massachusetts
Declaration of Rights and the Fourteenth Amendment to the United
States Constitution when applied to permanently incompetent
defendants charged with murder in the first degree. We analyze
his claim on substantive due process grounds. See Calvaire, 476
Mass. at 246. Accordingly, where the statute interferes with a
fundamental liberty interest, we apply strict scrutiny analysis
to the defendant's claim to determine whether G. L. c. 123,
§ 16 (f), is narrowly tailored to achieve a compelling State
interest. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993).
i. The defendant's liberty interest. In August, 2015, on
a motion by Bridgewater that was unopposed by the Commonwealth,
17
the defendant was released on bail, on conditions, and was
transferred from the custody of Bridgewater to the custody of
DMH, pursuant to G. L. c. 123, § 17 (c), so that he could
receive more appropriate medical care. He remains civilly
committed pursuant to G. L. c. 123, §§ 7, 8, in continuation of
his commitment under G. L. c. 123, § 16 (c). The defendant
claims, however, that his liberty interest is impaired by the
pendency of criminal charges against him. Although he is able
to reside in an unlocked medical unit at Lemuel Shattuck
Hospital, the pending charges prevent him from being able to
seek care in a long-term care facility that could better suit
his medical and mental health needs. Furthermore, pending
criminal charges may cause "anxiety, forfeiture of opportunity,
and damage to reputation, among other conceivable injuries."
Williams, petitioner, 378 Mass. 623, 626 (1979).
In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the United
States Supreme Court held that an incompetent defendant cannot
be committed based solely on his incompetency for longer than
"the reasonable period of time necessary to determine whether
there is a substantial probability that he will attain
[competency] in the foreseeable future." Indefinite commitment
of a defendant who is unlikely to regain competency intrudes on
the defendant's substantial right of liberty. Id. at 731-733.
The Court explained:
18
"We hold, consequently, that a person charged by a
State with a criminal offense who is committed solely on
account of his incapacity to proceed to trial cannot be
held more than the reasonable period of time necessary to
determine whether there is a substantial probability that
he will attain that capacity in the foreseeable future. If
it is determined that this is not the case, then the State
must either institute the customary civil commitment
proceeding that would be required to commit indefinitely
any other citizen, or release the defendant. Furthermore,
even if it is determined that the defendant probably soon
will be able to stand trial, his continued commitment must
be justified by progress toward that goal. In light of
differing [S]tate facilities and procedures and a lack of
evidence in this record, we do not think it appropriate for
us to attempt to prescribe arbitrary time limits. We note,
however, that petitioner Jackson has now been confined for
three and one-half years on a record that sufficiently
establishes the lack of a substantial probability that he
will ever be able to participate fully in a trial."
(Footnote omitted.)
Id. at 738.
The Court declined, however, to decide whether due process
requires dismissal of criminal charges against an incompetent
person. See id. at 740 ("Dismissal of charges against an
incompetent accused has usually been thought to be justified on
grounds not squarely presented here: particularly, . . . the
denial of due process inherent in holding pending criminal
charges indefinitely over the head of one who will never have a
chance to prove his innocence. . . . We think . . . that the
Indiana courts should have the first opportunity to determine
these issues").6
6 Very few State courts have addressed this issue. This may
be a result of statutes in many States having been modified in
19
light of Jackson v. Indiana, 406 U.S. 715, 738 (1972), to permit
broader dismissal of charges against incompetent individuals.
Indeed, many State statutes employ the specific language from
Jackson of "substantial probability that [a defendant] will
attain that capacity [to proceed to trial] in the foreseeable
future" to determine whether charges should be dismissed. See
id. Thirty-two States appear to require or explicitly to allow
dismissal of charges of murder in the first degree. See Alaska
Stat. § 12.47.110; Ark. Code Ann. § 5-2-310; Cal. Penal Code
§ 1370.01; Colo. Rev. Stat. § 16-8.5-116; Fla. Stat. § 916.145;
Ga. Code Ann. § 17-7-130; Haw. Rev. Stat. § 704-406; Idaho Code
Ann. § 18-212; 725 Ill. Comp. Stat § 5/104-23; 15 Me. Rev. Stat.
Ann. § 101-D; Md. Code Ann., Crim. Proc. § 3-107; Mich. Comp.
Laws § 330.2044; Mo. Rev. Stat. § 552.020; Mont. Code Ann. § 46-
14-221; Nev. Rev. Stat. § 178.460; N.H. Rev. Stat. Ann.
§ 135:17-a; N.J. Stat. Ann. § 2C:4-6; N.M. Stat. Ann. § 31-9-
1.4; N.C. Gen. Stat. § 15A-1008; N.D. Cent. Code § 12.1-04-08;
Okla. Stat. tit. 22, § 1175.6a; Or. Rev. Stat. § 161.370; 50 Pa.
Cons. Stat. § 7403; R.I. Gen. Laws § 40.1-5.3-3; S.C. Code Ann.
§ 44-23-420; Tex. Code Crim. Proc. Ann. arts. 46B.071, 46B.151;
Wash. Rev. Code §§ 10.77.084, 10.77.086; W. Va. Code § 27-6A-3;
Wis. Stat. § 971.14; Ala. R. Crim. P. 11.6; Ariz. R. Crim. P.
11.6; State v. Davis, 898 N.E.2d 281, 286 (Ind. 2008).
Of those, twenty States require dismissal of charges of
murder in the first degree after a defendant has been
incompetent for a specific period of time. See Ala. R. Crim. P.
11.6; Alaska Stat. § 12.47.110; Fla. Stat. § 916.145; 725 Ill.
Comp. Stat § 5/104-23; 15 Me. Rev. Stat. Ann. § 101-D; Md. Code
Ann., Crim. Proc. § 3-107; Mich. Comp. Laws § 330.2044; Mo. Rev.
Stat. § 552.020; Mont. Code Ann. § 46-14-221; Nev. Rev. Stat.
§ 178.460; N.H. Rev. Stat. Ann. § 135:17-a; N.M. Stat. Ann.
§ 31-9-1.4 (when defendant is also not dangerous); N.C. Gen.
Stat. § 15A-1008; N.D. Cent. Code § 12.1-04-08; Okla. Stat. tit.
22, § 1175.6a; Or. Rev. Stat. § 161.370; 50 Pa. Cons. Stat.
§ 7403 (proceedings for murder in first degree or murder in
second degree may not be stayed if there is no probability
defendant will regain competency); R.I. Gen. Laws § 40.1-5.3-3;
Wash. Rev. Code §§ 10.77.084, 10.77.086; Wis. Stat. § 971.14.
Other States exclude murder in the first degree -- and, in
some instances, other serious crimes -- from their dismissal
provisions, often explicitly. See Conn. Gen. Stat. § 54-56d;
D.C. Code §§ 24-531.04, 24-531.08; Iowa Code § 812.9; La. Code
Crim. Proc. Ann. art. 648; N.Y. Crim. Proc. Law § 730.50; S.D.
Codified Laws §§ 23A-10A-14, 23A-10A-15; Tenn. Code Ann. § 33-7-
20
Nonetheless, in a series of opinions related to the right
to a speedy trial under the Sixth Amendment to the United States
Constitution, the United States Supreme Court has determined
that a defendant's liberty interest may be restricted simply by
the pendency of criminal charges, even where the defendant is
not held in custody. Klopfer v. North Carolina, 386 U.S. 213,
221-222 (1967) ("The petitioner is not relieved of the
limitations placed upon his liberty by this prosecution merely
because its suspension permits him to go 'whithersoever he
will.' The pendency of the indictment may subject him to public
scorn and deprive him of employment, and almost certainly will
force curtailment of his speech, associations and participation
in unpopular causes"). See United States v. McDonald, 456 U.S.
1, 8-9 (1982) (same); United States v. Marion, 404 U.S. 307, 320
(1971) (same). See also State v. Davis, 898 N.E.2d 281, 290
(Ind. 2008) (quoting Klopfer, supra, in context of due process
claim). The liberty interests of a defendant who has pending
301; Va. Code Ann. § 19.2-169.3; Minn. R. Crim. P. 20.01. The
remaining States either do not have provisions related to
dismissal of charges against incompetent defendants or allow
dismissal only after proceedings similar to a hearing pursuant
to G. L. c. 123, § 17 (b). See Del. Code Ann. tit. 11, §§ 403-
404; Kan. Stat. Ann. § 22-3303; Ky. Rev. Stat. Ann. §§ 504.110,
504.150; Neb. Rev. Stat. § 29-1823; Ohio Rev. Code Ann.
§ 2945.38; Utah Code Ann. § 77-15-6; Vt. Stat. Ann. tit. 13,
§§ 4820, 4822; Wyo. Stat. Ann. § 7-11-303; Miss. R. Crim. P.
12.5, 12.6.
21
charges are as fundamental in the due process context of the
Fourteenth Amendment as they are in the Sixth Amendment context.
In other cases involving the essentially indefinite
commitment of incompetent defendants, we have held that a
defendant's liberty interests during the pendency of a criminal
trial are fundamental rights. See Foss v. Commonwealth, 437
Mass. 584, 589 (2002) ("Among many other problems studied and
addressed in the new mental health laws was the pretrial
commitment of incompetent criminal defendants. A major thrust
was to eliminate the highly questionable practice of committing
incompetent criminal defendants indefinitely, while awaiting
their unlikely restoration to competency, and also eliminating
the indefinite pendency of criminal charges that, most often,
significantly limited the incompetent criminal defendant's
access to treatment by more effective civil means" [emphasis
added]). See also Calvaire, 476 Mass. at 246 (applying strict
scrutiny analysis in determining that G. L. c. 123, § 16 [f],
does not violate due process because it allows Commonwealth
"some time to pursue the legitimate and proper purpose of
prosecuting charged crimes, but not for a period of time longer
than is reasonably necessary to ascertain the defendant's
chances of regaining competency"); Commonwealth v. Nieves, 446
Mass. 583, 590 (2006) (applying strict scrutiny in analyzing
liberty interests of incompetent defendant in sexually dangerous
22
person hearing pursuant to G. L. c. 123A). The defendant's
claims, therefore, are subject to strict scrutiny analysis. See
Aime, 414 Mass. at 673. The Commonwealth does not contest that
the defendant's asserted liberty interest is a fundamental
right.
ii. Strict scrutiny analysis. To satisfy strict scrutiny,
a statute "must be narrowly tailored to further a legitimate and
compelling governmental interest and be the least restrictive
means available to vindicate that interest." Commonwealth v.
Weston W., 455 Mass. 24, 35 (2009). The "requirements for
minimum due process may vary depending on the context." See
Commonwealth v. Burgess, 450 Mass. 366, 372 (2008), and cases
cited.
In Calvaire, 476 Mass. at 246, we concluded that G. L.
c. 123, § 16 (f), was narrowly tailored to achieve the two
compelling State interests of "protecting mentally ill
defendants from the indefinite pendency of criminal charges as a
result of their incompetency" and "protecting the public from
potentially dangerous persons." We noted that the statute
affords the Commonwealth sufficient time to prosecute crimes,
"but not for a period of time longer than is reasonably
necessary to ascertain the defendant's chances of regaining
competency." Id. The statute provides a method for calculating
a maximum period of time prior to dismissal of charges against
23
all defendants except those charged with crimes that do not
permit eligibility for parole, e.g., all crimes other than the
offense of murder in the first degree. We also noted the
additional statutory safeguard that allows, in the interest of
justice, the dismissal of pending charges before the expiration
of the computed period of time. Id. Use of that "safety valve"
may be warranted, we concluded, where "the defendant's chances
of being restored to competency are slim." Id. at 247.
In its opposition to the dismissal of charges in this case,
the Commonwealth relies on the compelling government interest of
public safety. It describes in detail the defendant's history
of violence prior to his father's murder and during his
commitment to Bridgewater. There is considerable evidence from
competency evaluations, however, including the opinion of the
director of forensic services at Bridgewater, that the defendant
is now too physically weak to pose a danger to public safety.
Since 2013, the defendant "has become progressively physically
weaker, and currently is bedridden and very weak physically."
He has a permanent feeding tube, cannot walk on his own, and
spends his time either in a hospital bed or a geriatric chair.
He is so weak that another person could control both of his
hands with one hand, and he would not be able to pull away. The
Commonwealth has acknowledged that the defendant was "physically
frail" as of at least 2015; while it opposes the dismissal of
24
the pending charges, it did not oppose Bridgewater's motion in
August, 2015, to transfer the defendant to DMH for a period of
one year, as it had in prior years.
In addition to its assertion that incompetency is not
evidence of a lack of guilt, the Commonwealth contends that the
charges should not be dismissed because dismissal would prevent
the district attorney from being notified of the defendant's
location or any hearing related to his competency. This
argument is unavailing. Pursuant to G. L. c. 123, § 16 (d), the
district attorney must continue to be notified of any hearings
conducted pursuant to any section of G. L. c. 123 for a person
who was initially committed under G. L. c. 123, § 16 (b).7 The
requirement of notification includes any future hearings on
petitions for civil commitment or an extension of civil
commitment pursuant to G. L. c. 123, §§ 7, 8. See Matter of
E.C., 479 Mass. 113, 122-123 (2018). Moreover, any dismissal of
charges pursuant to G. L. c. 123, 16 (f), is without prejudice,
so in the unlikely event that a defendant whose charges had been
dismissed were to regain competency, the Commonwealth would be
7 General Laws c. 123, § 16 (d), provides:
"The district attorney for the district within which
the alleged crime or crimes occurred shall be notified of
any hearing conducted for a person under the provisions of
this section or any subsequent hearing for such person
conducted under the provisions of this chapter relative to
the commitment of the mentally ill and shall have the right
to be heard at such hearings."
25
able to reinstate the charges. See Commonwealth v. Hatch,
438 Mass. 618, 624 (2003) (dismissal of charges pursuant to
G. L. c. 123, § 17 [b], is without prejudice).
The Commonwealth also emphasizes that the Legislature has
legitimate reasons for treating charges of murder in the first
degree differently from other offenses. See G. L. c. 277, § 63
(no statute of limitations for murder). See also Francis, 450
Mass. at 135 ("It is reasonable for the Legislature to treat
defendants facing a charge of murder in the first degree
differently from other defendants").
Furthermore, notwithstanding the exclusion of defendants
charged with murder in the first degree from eligibility for
dismissal of charges under G. L. c. 123, § 16 (f), the
Commonwealth contends that other statutory provisions provide
additional safeguards to prevent indefinite commitment and
afford incompetent defendants an alternative avenue for
dismissal of charges. General Laws c. 123, § 17 (c), allows a
court to release a defendant, with or without bail, at any stage
of a criminal proceeding,8 and G. L. c. 123, § 17 (b), permits a
8 General Laws c. 123, § 17 (c), provides:
"Notwithstanding any finding of incompetence to stand
trial under the provisions of this chapter, the court
having jurisdiction may, at any appropriate stage of the
criminal proceedings, allow a defendant to be released with
or without bail."
26
defendant to request a hearing that could result in dismissal of
charges if there is insufficient evidence to support a
conviction on those charges.9
The slim possibility that a judge in his or her own
discretion might decide to release a particular defendant
charged with murder on bail pursuant to G. L. c. 123, § 17 (c),
however, does not address the fundamental liberty interest at
issue here. See Klopfer, 386 U.S. at 221-222 ("The petitioner
is not relieved of the limitations placed upon his liberty by
this prosecution merely because its suspension permits him to go
'whithersoever he will'").
General Laws c. 123, § 17 (b), as the Commonwealth notes,
does allow incompetent defendants to petition for a hearing to
have their charges dismissed, if they can "establish a defense
9 General Laws c. 123, § 17 (b), provides:
"If either a person or counsel of a person who has
been found to be incompetent to stand trial believes that
he can establish a defense of not guilty to the charges
pending against the person other than the defense of not
guilty by reason of mental illness or mental defect, he may
request an opportunity to offer a defense thereto on the
merits before the court which has criminal jurisdiction.
The court may require counsel for the defendant to support
the request by affidavit or other evidence. If the court
in its discretion grants such a request, the evidence of
the defendant and of the commonwealth shall be heard by the
court sitting without a jury. If after hearing such
petition the court finds a lack of substantial evidence to
support a conviction it shall dismiss the indictment or
other charges or find them defective or insufficient and
order the release of the defendant from criminal custody."
27
of not guilty to the charges pending against [them] other than
the defense of not guilty by reason of mental illness or mental
defect." This statute permits incompetent defendants to request
a hearing at any time on the ground that they did not commit the
crime charged; that the Commonwealth never had or no longer has
sufficient evidence to prove that they committed the charged
crime; or that a defense other than mental illness or mental
defect, such as self-defense, applies. Furthermore, incompetent
defendants could seek to disprove the elements that elevate
murder from murder in the second degree to murder in the first
degree. If, at a hearing on a motion under G. L. c. 123,
§ 17 (b), a defendant is able to demonstrate that the act was
not committed with deliberate premeditation or extreme atrocity
or cruelty -- depending on how the defendant was charged -- the
most severe crime of which the defendant could be convicted
should the defendant later become competent would be murder in
the second degree. Defendants who are convicted of murder in
the second degree are eligible for parole after a period of from
fifteen to twenty-five years that is determined by the
sentencing judge. See G. L. c. 265, § 2; G. L. c. 279, § 24.
Accordingly, incompetent defendants who face a charge of murder
in the second degree qualify for dismissal of charges pursuant
to G. L. c. 123, § 16 (f).
28
The existence of this alternative avenue for dismissal of
charges in specific circumstances does not, however, prevent a
conclusion that G. L. c. 123, § 16 (f), violates substantive due
process in the circumstances in this case.10 Because it is
undisputed that the defendant will never become competent,
allowing charges that can never be resolved at a trial to remain
pending indefinitely is inconsistent with his right to
substantive due process. Compare Calvaire, 476 Mass. at 246
("The statute is narrowly tailored to allow the Commonwealth
some time to pursue the legitimate and proper purpose of
prosecuting charged crimes, but not for a period of time longer
than is reasonably necessary to ascertain the defendant's
chances of regaining competency"). A statute is not narrowly
tailored to achieve a compelling government interest where the
stated interest is not at stake. See Curtis v. State, 948
N.E.2d 1143, 1154 (Ind. 2011) ("Of course, the State's interests
cannot be realized if there is a finding that a defendant cannot
be restored to competency"). See also Commonwealth v. G.F., 479
Mass. 180, 196 (2018) ("[C]onfinement without legal
10The Legislature recently enacted a criminal justice
reform bill that allows a prisoner who suffers from a terminal
illness or permanent incapacitation "that is so debilitating
that the prisoner does not pose a public safety risk" to be
released on medical parole. See G. L. c. 127, § 119A, inserted
by St. 2018, c. 69, § 97. This compassionate release program is
available to all prisoners, including those convicted of murder
in the first degree.
29
justification is never innocuous, . . . and the legal
justification for confinement weakens after [a sexually
dangerous person] trial is concluded without a finding of sexual
dangerousness" [quotation and citation omitted]).
General Laws c. 123, § 16 (f), therefore satisfies the
requirement of substantive due process only insofar as it is
understood to allow the dismissal of charges, in the interest of
justice, in circumstances such as these, where the defendant
will never regain competency and does not pose a risk to public
safety.
3. Conclusion. The matter is remanded to the county court
for entry of an order allowing the defendant's petition pursuant
to G. L. c. 211, § 3, and remanding the matter to the Superior
Court for entry of an order allowing the defendant's motion to
dismiss.
So ordered.